150 F. 764 | 7th Cir. | 1907
after stating the facts, delivered the opinion of the court.
These propositions, at least, are well established, not only in the rulings of this court, but under all the authorities, in reference to preliminary relief in favor of the owner of a patent whep. the fact of infringement is charged and undisputed: (1) That an injunction pendente lite may issue, if patentable invention appears on the face of the patent, and the presumptions arising from the grant have been reinforced by the decision of a competent court, upholding the invention, upon issues duly raised and fairly litigated. (2) That on appeal from an order so predicated the only inquiry is whether the discretion of the court was improperly exercised under the. circumstances; and when disputed questions of fact are raised, as to priority of invention or like issues,' which were alike involved in the prior litigation, it is plainly within that discretion, to say the least, to reserve their determination for final hearing upon full proof. The injunctional order from which this appeal is brought was thus well founded under the first-mentioned doctrine; and it is unnecessary to consider other rules which are pressed in the argument, but not involved in the case, as authorizing or not authorizing such relief. The opinion filed below upon granting the order rightly recognizes the interference proceedings and decision therein of the Court of Appeals of the District of Columbia as within the meaning of the doctrine above stated, and well states the ground for the allowance. We are content to rest affirmance thereupon, with the remark, however, that the decision of the Court of Appeals referred to arose upon the statutory appeal from the ruling of'the Patent Office, in the interference proceeding, under the testimony there adduced. Consideration thereof remains for final hearing, and no intimation is intended that such decision is res judicata or conclusive in the present controversy, or of other than persuasive effect in reference to facts thus involved.
The order of the Circuit Court is affirmed.
